By Daniel Polonsky
On a weekend when police officers were handing masks to white residents in parks around New York City, NYPD Officer Francisco Garcia forced Donni Wright, a 33-year-old Black man, to the ground and knelt on his neck. Officer Garcia was one of 1,000 NYPD officers dispatched to enforce social distancing and mask-wearing. He had been investigating a report of individuals not wearing masks, although he himself was not wearing one. Police Chief Terence Monahan had previously assured reporters that the police would be educating the public and only breaking up large gatherings, not bothering individuals merely walking outside — “They don’t have a mask, we’ll give them a mask.” But Officer Garcia, who has settled six lawsuits for police misconduct for a combined $182,500, did more than educate that day. Multiple officers were in the middle of arresting two individuals after allegedly spotting a bag of marijuana when Mr. Wright spoke up in their defense. In response, Officer Garcia called him a racial epithet and accosted him, causing severe injuries to Mr. Wright’s back, ribs, and chest. What started as social distancing enforcement ended in racist, excessive use of force.
This incident highlights the overlap between the twin crises state and local governments face: halting the spread of Covid-19 and grappling with the systemic racism that characterizes the American system of policing. Governors are announcing emergency public health orders with fines and penalties, but who enforces those orders and imposes those penalties? As justice correspondent Elie Mystal warned, police officers will use social distancing enforcement “as an excuse for more racially biased harassment.” Jennvine Wong, a staff attorney with Legal Aid’s Cop Accountability Project, explains, “The NYPD is using this as a pretext to stop, question and frisk the same communities where they’ve been doing that for years now.” Statistics bear out this racially disparate policing: the NYPD reported that between March 16 and May 5, eighty-one percent of coronavirus enforcement summonses were issued to Black and Latino residents. Although white people make up thirty-two percent of the population of New York City, they only received thirteen percent of the 374 summonses. The problem is not isolated to New York — in the most populous jurisdictions in Ohio, Black people were four times as likely to be charged with violating stay-at-home orders as white people. The Covid-19 Policing Project has found that Black communities are more heavily subjected to coronavirus enforcement than white communities, and that charges for violating public health orders are being “stacked” on top of “quality of life” charges, in an expansion of “broken windows” policing of minor crimes.
Police enforcement of public health orders is dangerous for public health. Medical professionals warn that for each interaction the police have with members of the public, there is a risk of virus transmission. They urge that sending police into communities to enforce social distancing, like other “unnecessary contacts,” is “likely exacerbating, not helping, the problem of rapid viral transmission.” Even issuing a citation requires “close contact,” and each contact with a police officer has the potential to escalate into an arrest, which “creates dozens of points of contact and opportunities for viral transmission” first between the arrestee and the arresting officers, and then the officers at the precinct, others in holding cells, court officers assisting with arraignments, and, if an individual is not released, with Department of Corrections staff and others detained. Jails and prisons are hotbeds for the spread of the coronavirus, accounting for some of the biggest clusters of the virus and having ripple effects in the surrounding communities. One study found the almost sixteen percent of Illinois coronavirus cases could be traced to the Cook County Jail. The short-term cycling of individuals through the jail for arrest and pretrial procedures was found to have a multiplier effect, with 2.149 more cases for every individual arrested and released.
The harm stemming from police enforcement is not limited to the spread of the virus. The ACLU worries that a law enforcement approach “treat[s] everyone in the general population as a potential threat who warrants coercive treatment.” An increased police presence is all but guaranteed to lead to greater racial profiling — such as when a police officer stopped a Black state representative in Illinois leaving a store in a mask, explaining, “I couldn’t see your face, man. You looked like you were up to something.” Police are breaking up homeless camps in the name of COVID-19 ordinance enforcement, ignoring CDC guidance that this “can cause people to disperse throughout the community and break connections with service providers,” ultimately “increas[ing] the potential for infectious disease spread.” An increased police presence requires more police officers, or more overtime work for police officers. Police overtime has been linked to officer fatigue and resulting inability to exercise good judgment. One audit found that even one additional hour of overtime a week increased an officer’s likelihood of being involved in a use-of-force incident or ethics violation the following week. And new officers cannot be hired and deployed immediately. Instead, the Springfield Police Department in Massachusetts, recently chastised by the Department of Justice for a pattern or practice of unconstitutional excessive force directly attributable to deficiencies in policies, reinstated five police officers who had been suspended for their involvement in an off-duty brawl. The Springfield mayor justified the decision because “all hands on deck” were needed to keep the community safe during the pandemic, but reinstating bad cops and overworking others ultimately impedes this goal.
What is a governor or mayor looking to enforce public health orders to do? The Policing Project at the NYU School of Law suggests that municipalities aim for voluntary compliance and “avoid custodial arrests absent offenses that involve imminent public safety threats,” instead “approach[ing] infractions through education and awareness.” A white paper by two Georgetown Law professors similarly urged that “enforcement should focus on education and assistance, fueled by heavy doses of compassion and courage” including “plans for seeking out vulnerable people, assessing their needs, and connecting them with the services and resources they need.” Houston Mayor Sylvester Turner describes this approach as “masks over citations.” With officers handing out masks, the city is “working to make sure that [it is] keeping people healthy, and it’s not about being punitive.” The Portland-area Multnomah County Sheriff’s Office provides another example of “education over enforcement.” In an FAQ, the Office states that although officers have the option of issuing citations and even executing arrests, “these actions are reserved for only the most extreme cases” and “deputies have been encouraged to share public health information and offer resources to those who need them.” The Georgetown Law white paper argues that “[i]n the context of the current pandemic, arrests and incarceration for all but the gravest crimes will do more harm than good to public safety.” To that end, some police departments are scaling back enforcement of all crime. For example, the police department of Burlington, South Carolina issued a training bulletin advising officers not to “plac[e] themselves or others at risk to make arrests for low level crimes and/or misdemeanors” and to “consider the impact issuing a ticket could have on a person that lost their job and may not get a check for months.” The bulletin urges, in all caps, “Always remember WHAT’S IMPORTANT NOW?”
Policies such as these that center police enforcement and rely on police discretion are insufficient. Elie Mystal writes, “A society committed to racial and social equality would be looking for ways to strip power from police forces that have so completely shown they are unable or unwilling to wield it fairly. Instead, the coronavirus has made this society eager to give even more power to law enforcement.” Encouraging police officers to aid in public education while allowing them discretion to escalate encounters will not stop an Officer Garcia, and it will not protect individuals from a system of policing that has proven dangerous to the public health. How amenable can we expect individuals to be to public education campaigns when the President is spreading misinformation and causing an “infodemic?” When the President contradicts his CDC Director and calls masks a “mixed bag,” police officers are less likely to be able to convince individuals to put on a mask. In addition, even if street-level public education is possible, police officers are a poor vehicle for it. According to Gallup polls, confidence in the police is at a record low, with only forty-eight percent of Americans expressing “a great deal” or “quite a lot” of confidence in the police. The level of trust in police is even lower for Black Americans — how can they be asked to trust that officers are looking out for their health when they witness the blue wall of silence protecting police corruption? Studies have shown that the widespread use of street stops by police leads to lowered legitimacy for the police, resulting in decreased law abidingness and less willingness to cooperate with legal authorities. Police are ill-positioned to aid in public education, let alone protect the public health.
A governor or mayor looking to protect the public health must eschew police enforcement. As a first step, someone other than the police should be handing out masks and spearheading public education at the individual level. Abolitionist groups have called for law enforcement to be removed from the emergency response completely, urging that emergency funds should instead “be released to community-based organizations, health worker organizations, and self-organized mutual aid groups that are providing material support directly to vulnerable communities.” The Movement for Black Lives’ “Healthcare, not Warfare” platform similarly demands that police be forbidden from detaining or arresting people for violating emergency public health orders, which can be drafted without authorizing police enforcement. In Massachusetts, police have been granted authority to enforce the Governor’s orders, but so have the Department of Public Health, local boards of health and their agents. Some orders have been drafted to allow “any other agency that the Governor may formally designate” to enforce them. Better yet, private, community-based organizations can be utilized to spearhead public education campaigns and distribute protective resources. In Chicago, members of the Target Area Development Corp., a nonprofit community outreach group of “credible messengers” have been deemed essential workers. These workers, who had been getting to know people at risk of violence and helping steer them away from it, are now handing out masks and city pamphlets and convincing their communities to follow public health guidance. Public education and resource deployment are best left to these credible messengers, whether community members or health professionals, rather than officers with punitive enforcement power who are distrusted by the community.
If there is to be any punitive enforcement, it should be in the form of regulatory agencies overseeing businesses and other entities, rather than police officers investigating individuals. This is the approach that Kentucky Governor Andy Beshear announced, with businesses subject to fines if they neglect the mask mandate. This is similar to how Lexington’s public smoking ban has been enforced — health department officials talk to businesses where violations occur to find out if they have proper signage and remind them of rules and guidelines. Beshear is encouraging businesses to deny access to those who refuse to wear masks and is having officials work with businesses to overcome any roadblocks to following the mandate. Businessowners can be incentivized to enforce public health orders among employees and customers in order to avoid fines or other sanctions such as the loss of a liquor license. Businesses may welcome help and guidance in how best to maintain safe establishments, given that some customers have responded violently to requests to comply with public health orders. Rather than having police officers enforce public health orders one citation at a time, state health officials and labor officials can work with businesses to have a greater net impact on mask wearing and social distancing.
Officer Garcia should not have been given the authority to enforce emergency public health orders. As the ACLU warns, “coercion and brute force” are “counterproductive — they gratuitously breed public distrust and encourage the people who are most in need of care to evade public health authorities.” A criminal justice approach is not the solution for public health problems. Public education through community health organizations and limiting any punitive enforcement to the business level is a more productive, less harmful approach.
This post was originally published on the COVID-19 and the Law blog.
Daniel Polonsky graduated from Harvard Law School in May 2021.